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This Week in the Legislature: Environment

Legislation sponsored by Senator Diaz de la Portilla (SB 444) addressing ocean outfalls passed unanimously in the Senate this week and is now in House Messages. Senator Hays’ bill (SB 1106) to prohibit local governments from limiting agritourism activities on land classified as agricultural land passed the full Senate unanimously. Its companion in the House is on second reading.

Bills to amend environmental permitting requirements continued moving through both chambers despite continued concerns from stakeholders. HB 999 by Representative Patronis may soon be amended to include a “Florida Fertilizer Regulatory Review Council” to address local ordinances governing the regulation of non-agricultural fertilizer.

An accurate inventory of government-owned property, not more than 1 year old, is made public;

Sufficient funds are approved in the county’s annual budget for the maintenance of existing properties;

An analysis by the county describing the annual cost of maintenance of the proposed land purchase is completed; and

An equal amount of public property not being held in conservation is returned or sold at fair market value to the private sector.

Status:

The bills have yet to be heard in committee; there are four references in both the Senate and the House.

Sponsors believe government owns too much land. Sponsors reference the purchase of whole parcels when only portions needed for conservation, and the need to reduce management costs and increase tax rolls.

The Senate bill was temporarily postponed in the Environmental Preservation and Conservation Committee after concerns were raised by several members.

Summary: In 2008, the Legislature prohibited the construction of new ocean outfalls and required that all six existing ocean outfalls meet advanced wastewater treatment (AWT) standards by 2018, and cease discharging wastewater by 2025. In addition, those wastewater facilities were required to install a reuse system capable of providing a minimum of 60% of the actual flow. The bill amends current law:

Utilities that share an ocean outfall are individually responsible for meeting reuse requirements but may share or transfer responsibility.

Backup discharge may include peak flows from other wastewater management systems, but may not cumulatively exceed 5% of baseline, measured as a 5-year rolling average, and subject to secondary waste treatment and WQBELs.

If in compliance, discharges are deemed to meet AWT

Detailed plan for DEP to include technical, environmental, and economic feasibility of reuse options, costs of treatment and comparison with other sources, availability of traditional water supplies, the need for AWS and offset from potable water supplies.

DEP, SFWMD, and utilities must consider the detailed plan to adjust the reuse requirements as necessary. DEP shall submit a report to the Legislature by February 15, 2015.

Status:

Senate bill referred to four committees; House bill referred to three committees.

Senate bill passed unanimously in Environmental Preservation and Conservation on 3/7/13; passed unanimously in Community Affairs on 3/14/13, and this week, passed unanimously in the Appropriations Subcommittee on General Government (3/19). The bill now moves to its final Senate committee: Appropriations.

House bill passed unanimously in the Agriculture and Natural Resources Subcommittee on 3/07/13; and this week, passed unanimously in the Agriculture and Natural Resources Appropriations Subcommittee with a Committee Substitute (3/18). The House bill passed in State Affairs and will now move to the House floor. The bill was placed on the calendar for Second Reading and temporarily postponed on 4/11/13.

The Senate bill was passed unanimously by the Appropriations Committee on 4/3/13 and passed the full Senate unanimously on 4/11/13. The bill is now in Messages.

Prohibits a “governmental entity” (currently, a “county”) from adopting or enforcing any prohibition, restriction, regulation, or other limitation on activity of bona fide farm operation on land classified as agricultural land.

Prohibits governmental entity from charging an assessment or fee on a bona fide farm “activity” that is regulated through BMPs or other state or federal regulations.

Status:

Four committees of reference in House; passed Agriculture and Natural Resources Committee unanimously; now in Local and Federal Affairs.

Four committees of reference in Senate; amended bill language passed unanimously in the Senate Agriculture Committee on Monday, 3/11/13.

Working with bill sponsor to address concerns over broad interpretation and fiscal impact to counties, most notably with regard to MSBU’s and other service-related assessments. Sponsor has agreed to an amendment that would delete the term “assessment” and limit the proscription to duplicative fees on “specific activities. Senate bill was filed last week with amendment language.

Amendment adopted and the House bill passed with a Committee Substitute in Local and Federal Affairs Committee. The bill passed the Finance and Tax Committee on 3/28/13 and now moves to State Affairs.

On 4/3/13, the bill was passed unanimously by the State Affairs Committee, and was placed on the House Calendar for Second Reading.

The Senate bill is now in the Appropriations Subcommittee on Finance and Tax, its third of four committees of reference.

The Senate bill was passed by the F&T Committee and now moves on to Appropriations, its final committee.

Revises definition of “agritourism activity” currently in statute as follows: “any activity consistent with a bona fide farm or ranch or in a working forest that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy agricultural-related rural activities, including, but not limited to, farming, ranching, historical, cultural, or harvest-your-own, or nature-based activities and attractions.”

A local government may not adopt an ordinance, regulation, rule, or policy that prohibits, restricts, regulates, or otherwise limits an agritourism activity on land classified as agricultural land.

Defines “inherent risks of agritourism activity” (including land conditions, animal behavior, structures and equipment), and provides that owners, professionals and employees are not liable for injuries if a “notice of risk” is posted.

Status:

House bill filed on 2/20/13. Referred to Agriculture and Natural Resources Subcommittee; Civil Justice Subcommittee and State Affairs Committee. Passed unanimously in Agriculture and Natural Resources on Tuesday 3/12/13.

Senate bill filed on 2/21/13. Referred to Agriculture; Community Affairs and Rules. Passed unanimously in Agriculture Committee on Monday 3/11/13.

Met with both sponsors, and the staff director and Chairman of the Agriculture and Natural Resources Subcommittee. All understand our concerns and are willing to amend the language to narrow the scope of the preempted activities. Met with Senate Community Affairs staff director last week and the Committee Chairman this week.

The Senate bill passed unanimously in the Community Affairs Committee on 3/20/13, although Senators Thompson, Bradley, and Smith indicated that the language needed to be “tightened up.”

The House bill was passed this week by the Civil Justice Subcommittee; 10 Yeas, 2 Nays.

We continue to meet with representatives of the Farm Bureau, DACS and the bill sponsors to discuss amendatory language that would limit the scope of the preemption and clarify that the construction of new structures and facilities is not subject to the preemption. We also continue to update Chairman Thrasher and the Rules Committee, the bill’s final committee of reference.

An amendment was adopted in the House State Affairs Committee, which removes the “including but limited to…” phrase limiting the preemption to those uses specified in current law. The amendment also excludes the construction of new structures and facilities intended to house, shelter, transport, or otherwise accommodate members of the general public.

The bill, as amended, was passed unanimously in State Affairs and now moves on to the House floor.

An identical amendment was adopted in the Senate Rules Committee, and the bill, as amended, was passed unanimously with a Committee Substitute. The bill now moves to the Senate Floor.

The bill passed the full Senate unanimously on 4/11/13. The House bill is on Second Reading.

Consent is not required of counties providing utility services where they are already being provided by others if those services are being provided pursuant to a franchise agreement that has expired. Counties must first conduct a referendum, the results of which indicate a preference for County service.

Adds a county consent requirement for municipalities wishing to extend corporate powers into unincorporated areas.

Defines the term “public entity” to include a municipality supplying electricity or gas outside of incorporated boundaries.

Subjects any municipality that sells water or wastewater utility services outside of its incorporated boundaries to regulation by the Public Service Commission.

Status:

Four committees of reference; Energy & Utilities; Local & Federal Affairs; Government Operations Appropriations; and Regulatory Affairs. Bill has yet to be heard.

Last week, Senator Garcia filed a bill (SB 1620) with only the county consent requirement for municipalities wishing to extend corporate powers into unincorporated areas. Referred to Communications, Energy, and Public Utilities; Community Affairs; Judiciary; and Rules. Yet to be heard.

Met with Rep. Mayfield and Senator Garcia’s staff this week. Addressed inquiries from member counties supporting the bill, and discussed amendments that, if filed, could garner FAC support.

The first of what may be several stakeholder meetings was held. A number of concerns were raised by many groups including FAC and several county representatives who travelled to Tallahassee to participate. FAC is presently seeking input from membership on specific amendatory language to address these concerns.

A strike-all amendment was filed in week four, which included provisions related to mooring fields, special event lease fees, allocation restrictions for users construction desalinization plants, and commercial recovered materials. Other provisions were removed including references to the OHWM and certified landscape architects in § 403.0877.

A second stakeholder meeting took place prior to the bill being heard in committee on Wednesday, March 27. FAC and representatives from several counties expressed a number of concerns with the bill and Rep. Patronis agreed to consider these; he indicated there would be “only one more” revision. He also indicated that a separate meeting with just the local governments might be appropriate. We intend to follow up next week.

The House bill was passed with a CS by the Agriculture & Natural Resources Subcommittee; and now moves on to the Agriculture & Natural Resources Appropriations Subcommittee.

FAC is also participating in meetings with the Solid Waste Association regarding the amendment restricting the counties’ ability to provide for competition with private companies regarding commercial recovered materials. Another meeting is scheduled for next Monday morning.

This week, the Senate Environmental Preservation and Conservation Committee adopted a strike-all amendment (and two other amendments to that amendment). The bill as amended, addressed many of FAC’s concerns including:

The section dealing with RAIs now applies only to applications by certified professionals. Further, the requirement of tiered requests from supervisor-director-administrator was removed, and replaced with a simple meeting between the government and applicant prior to the third request.

The section of the bill regarding mean annual flood line (and its use in OHWM delineations) was removed in its entirety.

The long and complex section dealing with commercial recovered materials was stricken in its entirety and replaced with two sentences - one requiring action on an application within 90 days, and one prohibiting unfair competition during the pendency of its review.

The subsection creating a wetlands and water quality exemption for §298 water control districts was removed.

Delegated programs for water wells were authorized, where the original bill provided for a full preemption of local programs and sole responsibility with the water management districts.

The Senate bill, as amended, was passed unanimously with a committee substitute by the Environmental Preservation and Conservation Committee.

Summary: On March 15, the DEP and EPA announced an agreement to allow Florida to implement its own numeric nutrient criteria in lieu of federal standards, which were promulgated in response to litigation. This week, legislation was proffered in both chambers to effectuate DEP’s “path forward.” In summary, the bills provide:

Authorization to implement criteria in flowing waters, with standards applicable to downstream waters

Authorization to implement standards in streams, springs, lakes and estuaries in accordance with the document entitled “Implementation of Florida’s Numeric Nutrient Standards”

Upon withdrawal of EPA’s rules and cessation of further rulemaking, the non-severability and effective date provisions (Rule 62-302.531(9)) expire and are removed from the Florida Administrative Code.

New estuary rules are exempt from legislative ratification.

Status:

The proposed committee bills were approved by the House State Affairs Committee (with one technical amendment) and the Senate Environmental Preservation Committee and submitted as committee bills.

This week, the Senate Committee Bill was filed as SB 1808, the House bill as HB 7115.

The reference to the House Agriculture & Natural Resources Appropriations Subcommittee was removed this week and the bill has been placed on the Calendar for Second Reading.

The Senate bill was referred to Community Affairs.

With adoption of a strike-all amendment (to clear up some legal deficiencies), the Senate bill passed unanimously in Community Affairs.

FertilizerSummary:

This week, Speaker Designate Crisafulli unveiled his plan for a “Florida Fertilizer Regulatory Review Commission.” The proposed bill provides a legislative intent to address the patchwork of regulations with a science-based approach to identify practices that would provide a positive impact on water quality.

The stated purposes of the Commission include:

A review of existing peer-reviewed scientific data, current statutes, administrative rules, local ordinances, and the Florida-Friendly Model Ordinance.

Taking public comment

Providing recommendations for uniform regulation.

Developing proposed legislation, and amendments to Model Ordinance

Commission would be comprised of 13 members appointed as follows:

FAC (1)

FLC (1)

Florida Stormwater Association (1)

DACS / IFAS (1)/(2)

Pest Control Association (1)

Golf course Superintendents (1)

Fertilizer Industry (1)

Landscape and lawn care (1)

DEP (1)

WMD (1)

Environmental Community (1)

There would be a moratorium on local government ordinances unless Model Ordinance is adopted in order to receive credits or otherwise comply with TMDLs or BMAPs.

This week, proposed revisions were drafted and submitted to Chairman Crisafulli for consideration. Revisions include: FAC appointment by DACS Commissioner, IFAS limited to one appointee and UF Water Institute being added. The duration extended one year to 2016 (to allow for inclusion of the ongoing Tampa Bay study), and clarification that the moratorium only applies to new ordinances, and that any local government may adopt the Model Ordinance at any time.

This week, another stakeholder meeting was held and discussions were held regarding the proposed bill. Written comments were provided and we would expect the revised language to be filed as an amendment, possibly to HB 999/SB 1684.